Make Your Case

Winning Civil Court Strategies Straight from the Hot Bench

Tanya Acker

• Publisher: Diversion Books
• Year: 2020
• ISBN:
  9781635766882
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

"Tanya Acker lays out a common sense approach to deciding when to go—or not to go—to court. Make Your Case is straightforward and an invaluable resource from someone with the legal insight to tell it like it is."
—Judge Judy Sheindlin Tanya Acker, co-star of the nationally syndicated and Emmy-nominated show Hot Bench, demystifies civil litigation—from common lawsuits to new cases emanating from Covid-19 and looting (tenant vs. landlord rent disputes, small business damage, and more)—and lays out an expert's guide to legal proceedings inside the courtroom and out, giving readers professional insider information they need to find THEIR WIN in a lawsuit. Millions of people end up in civil court each year. They assume going to court is the next logical step in their fight, but they often have little idea about how the court system works or what they can reasonably expect of it. They make poorly informed judgments about whether court is the best option for solving a problem, what kind of solutions it can provide, and why it proceeds in the (sometimes) counterintuitive way it does. They think "winning" is only about the judgment or verdict rendered by judge or jury. Those "wins" are great—but if you don't know what the process can exact from you or why it works as it does, that blind procession to victory can end up costing you your real win.In Make Your Case, Tanya Acker cuts straight to the essentials, providing curated, targeted information based on her extensive experience regarding exactly what people want to know: what happens during court proceedings and why, and how to best prepare for it—or how to avoid court entirely and find a better way. Be smart. Be ready. Make your case.

PART I

When the Fight Heats Up

By a little inquiry, she found which was the building she sought, went into the door, and taking the first man she saw of imposing appearance for the grand jury, she commenced her complaint. But he very civilly informed her there was no Grand Jury there; she must go upstairs. When she had with some difficulty ascended the flight through the crowd that filled them, she again turned to the ‘grandest’ looking man she could select, telling him she had come to enter a complaint to the Grand Jury. For his own amusement, he inquired what her complaint was; but, when he saw it was a serious matter, he said to her, ‘This is no place to enter a complaint—go in there.’

—Dictated by Sojourner Truth,
Written and edited by Olive Gilbert,
The Narrative of Sojourner Truth (c. 1797–1883)

SO, YOU WANT TO BRING A LAWSUIT

You’re Over It. You Think
You’re Ready for the Fight. But Are You?

You’re going to court because you have a problem you want to fix. You want to make your opponent pay a price. You want to win your fight.

“Winning” in court, of course, means accomplishing the objective you set out to obtain—getting the judge or jury to agree with you. It can mean getting the other side to pony up or to back off, as the case may be.

But that isn’t all it means.

It also can mean arriving at the finish line without having been bled dry of your resources. It means accomplishing an objective that still matters because you haven’t blown everything up en route to getting it.

Spend some time thinking about your case before it starts. Try to anticipate some things in advance. Flying by the seat of your pants when you’re fighting in court can be really expensive. Save your pants and plan ahead.

What You Should Know: A Brief Overview of Our Court System

You’re “going to court.” Where? Which one? What do you do when you think court is your next step for solving a problem?

First, let’s have a brief overview about how the court system is organized.

Most legal cases fall into one of two categories: civil or criminal. There are separate court divisions for each.

Criminal cases are those instituted by a government for a violation of (you guessed it) a criminal act. Governments—national, state, and local—are in charge of prosecuting crimes, the idea being that they (not private individuals) are charged with guarding the public’s interest in safety and security. It’s why criminal cases are denominated The People vs. Jon Alleged-Criminal. “The people”—the citizens—are seeking to hold responsible Mr. Alleged-Criminal for his misconduct (via the prosecutor). (The “people” elect the legislators who create criminal legal codes and/or determine appropriate penalties. When those legislators criminalize something, they are ostensibly acting on “the people’s” behalf.)

Civil cases, by contrast, are brought by private people on behalf of private interests, although they often advance public goals, too. For instance, if someone brings a lawsuit against their employer claiming their boss discriminated against them on the basis of race or gender (which is prohibited by state and federal law), they might be seeking personal compensation for themselves, but they may also be seeking a remedy that will benefit a larger group of people in similar situations. Many rules about how people interact with one another have come about because of civil lawsuits individuals brought in which they sought relief from something that was harming them very personally and directly.

Teresa Harris, for example, a retail manager for a forklift company, brought a lawsuit against her employer which changed the rules of the workplace for many. She claimed her employer called her a “dumb-ass woman”; that he suggested she negotiate pay raises with him at a hotel rather than at work; and that he asked her and other female employees to get coins from his front pocket. She argued in court that she had a right to be free from that kind of treatment at work. Her 1993 victory in the U.S. Supreme Court is why hostile work environments are now illegal in the United States.¹

Federal Court

Most civil cases are brought in either federal or state court.

AGENCIES AND OTHER DECISION-MAKERS

In some instances, you’ll have to first file a claim with the relevant agency or administrative body, such as the California Labor and Workforce Development Agency (for unpaid wage claims) or the U.S. Equal Employment Opportunity Commission (for workplace discrimination claims). If these decision-makers decline to investigate or issue an adverse decision, then you can take your case to court.²

The president nominates federal judges, which include U.S. Supreme Court Justices, and the Senate votes on whether or not to confirm them. They have their jobs for life.

Federal courts are courts of “limited jurisdiction.” That means in order to bring your case to federal court, you have to have a claim that arises under federal law—a federal statute or the U.S. Constitution. A challenge to a state law on the ground that it prevented you from voting for an impermissible reason—such as race, gender, or age, which are protected by the 15^th, 19^th, and 26^th Amendments, respectively—would be an example of a claim a federal court can hear. Also, federal courts have what is known as diversity jurisdiction, or jurisdiction between citizens of different states when the amount is greater than $75,000.³

State Courts

State court judges are usually either appointed or elected by popular vote, or a combination thereof. Many states organize their courts into different divisions; in my home state of California, for instance, the divisions include Criminal; Civil (Unlimited Jurisdiction, for cases over $25,000); Family; Juvenile; and Limited Jurisdiction (Small Claims). When you file your case, you’ll complete a cover sheet that will determine the division to which your case is assigned.

The rules in each of these different courts may vary; for instance, in a civil case, you can bring a summary judgment motion, which allows you to get rid of a case that someone files against you before trial starts because it’s clear from the discovery process that the other side doesn’t have enough facts to make its case. In family court (at least in California), however, summary judgment isn’t available.

CALIFORNIA FAMILY COURT—LET THEM FIGHT IT OUT!

According to the Judicial Council of California, the basis for disallowing summary judgments in family law cases is that those disputes almost always turn on questions of fact.⁴

If you think this can promote litigation amongst already angry people who are looking for reasons to make things as difficult as possible for someone who they may, at the time, hate, then I would agree with you. It does.

The cases we hear on Hot Bench are drawn from small claims courts, where the parties represent themselves. The procedures in small claims court are usually simpler and the process more informal than in civil courts where larger amounts are at stake. Depending on the nature of your case (and the amount you’re seeking), the cost and time savings may make small claims court an attractive option, even if you end up suing for less money.

Arbitration

Arbitration is an alternative dispute resolution procedure that allows for parties to resolve their dispute without going to court. I’ll discuss it in more detail in Chapter 11 as a way to avoid litigation (and some of the travails I mention during the course of this book). It is also being used increasingly as a means of resolving disputes in the first instance; many contracts, for instance, require employees, consumers, and others to arbitrate their claims instead of going to court. While you can in certain circumstances challenge the decision of the arbitrator in civil court, those circumstances are limited. Some of the grounds for vacating an arbitration award include 1) fraud or corruption in obtaining the award; 2) partiality on the part of the arbitrator; or 3) the award exceeds the arbitrator’s powers.⁵

What You Should Know: You Can Lose Before You Even Get to Right or Wrong

When you’re in the middle of a dispute with someone, you’re usually focused on questions that are pretty basic. Who’s right? Who’s wrong?

In court, you potentially won’t even get to those questions unless you do some advance work and answer others, first. If you don’t, you could end up spending time and money in amounts that will make you sick before you even get to the issue of how right you think you are in your case. Making your case means more than explaining why you think you should win. It means being prepared to explain why you should be in court in the first place.

For purposes of this chapter, let’s assume you are on the receiving end of some perceived injustice and you want to fix it. Someone has done something wrong. They owe you money. They damaged your property. They’ve reneged on a commitment. They’ve injured you. You don’t just want to rant about it or spread outrage about it on social media. You want to fix it.

Court is where people go to solve problems, and to solve them in a way that is fair and equitable—according to rules that are supposed to apply to all of us and to which we’re all supposed to be able to resort if we need them. It’s not supposed to be a free-for-all. Court is not where anything goes and the winner is the one who knows how to make mud stick best. In court, we expect an orderly resolution. There are rules, which ostensibly are there to keep everyone in line.

But if you’re not careful, some of those rules can be trapdoors that will drop you into a No Man’s Land where you’re spending money chasing issues that have nothing to do with proving how right or wrong you are in your fight. You can end up going broke—and still be no closer to resolving the fight that brought you to court in the first place.

What You Can Do: Interrogate Yourself, First

If you think court holds a solution to your conflict, ask yourself some basic questions first. You’ll be glad you did.

“Who” Is My Opponent in this Fight?

When you’re fighting in court, this is not as obvious a question as it seems.

Who did the bad thing to you?

Who are you going to sue?

Are they the same person?

Are you sure?

Sam is a contractor who made some big promises about how he could transform your kitchen. You hire him to do the job. The total cost of the project was $7,000. You pay Sam $3,500 upfront to buy materials and hire workers.

Sam was supposed to start the project the following week. Three weeks later, he still hasn’t started the project and has stopped returning your phone calls. The police tell you it that it’s a “civil matter” and they won’t get involved.

What can you do? You, I’m assuming, are a generally law-abiding person who isn’t inclined to “take the law into your own hands” because you have no interest in seeing your already troublesome problem get any worse. The police won’t get involved because it’s a “civil matter.” Pursuing your larcenous contractor probably has to take a back seat to more pressing law enforcement matters.

Writing a nasty Yelp review isn’t going to satisfy you. Complaining online isn’t necessarily going to get you your money back. You want your money back. You don’t want someone to think they can just get away with taking advantage of you. I don’t think any of us would give short shrift to the need to stand up for ourselves in certain situations.

Unaware of any other (legal!) options, you decide to sue Sam.

You are the “plaintiff.” Sam would be the “defendant.” But is Sam the person you should be suing? Is Sam an independent contractor who you could sue as a private individual (e.g., You v. Sam D., an individual)? Is his business structured as a limited liability corporation or some other entity? Should you name that entity in the lawsuit instead (You v. Sam D. Construction, Inc.)? If Sam works for a company, who owns the company? Who is the person in the company to whom lawsuits should be directed—its “registered agent” for service of process?

You could, of course,...