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Lost case becuase of incompetent lawyer, what now?


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This is a carryover of the another post. The original post was 

Do I have to answer these Interr on Judgement Debtor??

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So this is a massive mess. As I said, the lawyer we hired gave the case to an "associate" but he is no longer working with her. We have been going back and forth with our lawyer to get some sort of direction or answer out of him and he is giving us nothing. My husband told him we won't be working with him anymore. We don't have the paperwork from the judgement or pretty much anything but some vague e-mails and phone calls from our lawyer or the layer he handed us off to.

 

The plaintiff's lawyer has said things like he will only accept payment over time with 10% interest, we were trying to offer him a lump payment but have no idea how that was received. This is a JDB.

 

I want to try to get this overturned if possible. The plaintiff's lawyer had the rules of evidence relaxed in court so they only had to prove it was likely that they owned the debt and the amount was correct.

 

I don't know where to start on this one. Can someone point me in a direction so I can start researching what to do next?

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Here is the problem you have:  Maryland gives a VERY limited time to have the judgment vacated or to appeal.  If you don't do so within those time frames you are OUT OF LUCK.  I did find this that explains the time frames:

 

If you are within the first 30 days you are in luck because a Court will vacate the judgment for almost any reason. If you are past 30 days, you are out of luck because you have to prove one of three things: 1) fraud; 2) mistake; or 3) irregularity. Anything not in these three categories and you stand almost no chance of having the judgment vacated.

Trial Judgments: You can file to vacate the judgment and for a new trial within 10 days of the judgment. You can also file for an appeal which is most common. If you appeal from a small claim, $0.01 to $5,000 you will receive a de novo appeal. This means you will get a brand new trial in front of the Circuit Court. If you appeal from a large claim, $5,000.01 to $30,0000 you will receive an on the record appeal. Meaning the Circuit Court will look to the actions the District Court took during your original trial to see if any mistakes were made.

 

How long has it been since they got the judgment against you?

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"The plaintiff's lawyer had the rules of evidence relaxed in court so they only had to prove it was likely that they owned the debt and the amount was correct."

 

Do you have proof of this, or can you in some way prove this? Since a default judgment has already been granted, and I'm not fluent with your state's Rules of Civil Procedure--the first place I'd start is researching your state's Rules. Determine if there is any way you can get this overturned. If not, I'd either file suit against your lawyer for legal malpractice, or file suit against the plaintiff's lawyer for the relaxed evidence rules. Find a law in your state that says that if you're in a suit with the debt collector, any debt collection as a countersuit essentially 'freezes' until the controversy has been ruled upon.

Sorry you were burned with bad lawyering. Wish you'd found us first. Water under the bridge at this point, these are the new cards dealt. My suggestion as a direction is as above.

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It has been too long to do anything except 

 1) fraud; 2) mistake; or 3) irregularity. Anything not in these three categories and you stand almost no chance of having the judgment vacated.

 

The lawyer was supposed to file an appeal but didn't. If I can find that the relaxation of rules was misused ( my husband thinks it was only for claims under $5000 but was used for our suit which was for $12,000. Would that be a mistake? 

 

I wasn't in court that day. Can I get a transcript front he court and how do I do that? I would imagine the rule used by the plaintiff's lawyers would be in there.

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If I can find that the relaxation of rules was misused ( my husband thinks it was only for claims under $5000 but was used for our suit which was for $12,000. Would that be a mistake? 

 

Your lawyer would have had to object to the relaxation of rules.  If he didn't then it is not preserved for appeal or vacating.  You can try but would not hold out much hope.  You probably had a better chance with an appeal based on not following the letter of the law but if the time to appeal has lapsed that door is closed.

 

I wasn't in court that day. Can I get a transcript front he court and how do I do that? I would imagine the rule used by the plaintiff's lawyers would be in there.

 

Assuming there is a transcript yes you can get one.  You will have to pay for it and the charge is usually around $1.50 per page or more depends on the court.

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So from what I am getting here, the lawyer messed up in court and afterward. He said we could always file an appeal but then his associate (who he doesn't even work with anymore). Didn't do a damn thing for weeks after the trial. We don't get strait answers about anything that happened or is happening.

Can I do something about the lawyer?

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Can I do something about the lawyer?

 

The best answer is MAYBE.  It isn't necessarily what you want to hear but I am going to play devil's advocate for a moment.  I know that YOU believe that the lawyer was incompetent and I am not saying 100% he wasn't BUT this is a common complaint from MANY litigants who lose their case.  Losing does not automatically equate to incompetence.  Delegating it to an associate does not either.  

 

What you can and should do is discuss the case with another consumer attorney to determine if there is malpractice in your case that can be pursued against the former attorney.  If there is go after him full bore and file a complaint with the Bar Association.  You do NOT want to file a complaint with the Bar until you have exhausted all your other options because if the Bar determines there is no issue it will submarine any other action.  

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As the OP has experienced, hiring a consumer attorney to defend a collection case is not some kind of talisman that will always prevent an adverse judgment.

 

"Barring settlement and having only two represented parties, on average, 50% of lawyers walk out of court at the end of litigation with their client being the loser. I doubt that 100% of those losing clients were told to keep their attorney fees as their lawyer failed to “earn” them. YMMV, but don't bet on it." I would want to make sure it isn't my lawyer walking out of court with me as the losing client. If my name is on the caption I believe it is my case, whether I have representation or not. Others may choose to sit back and let their attorney bill them and take care of the "details".

 

I would only engage an attorney for litigation to win on my behalf. If they cannot or will not win, they can stay on the porch IMHO. My due diligence would involve looking into a potential attorney's experience, win loss ratio in similar cases, and other pertinent information as to their odds of assisting me in a litigation win.

 

I believe it would likely be a tough road to pursue justice due to malpractice, incompetence, or other bad behavior by my own attorney. The State Bar of Arizona is likely to be of no help AFAIK. Other state's bars may vary in their assistance. I agree that any litigation I would pursue would likely be approached before I considered filing a bar complaint, in order to avoid any possible compromise by an adverse bar determination.

 

I also believe that consulting with a few competent consumer attorneys should give insight as to the possibility of prevailing in possible litigation or settlement. I don't choose to initiate litigation (with or without representation) where it appears I cannot "win".

 

If the competent consumer attorneys I interview refuse to take my case and they fail to convince me that I have no case *I* would begin my research on the case law supporting my claims and see where that leads me. If the case law did not pave a nice path for me to follow I would be very unlikely to pursue my attorney in litigation for the harm they caused me. One must pick their battles wisely IMHO.

 

Obviously, when discussing my attorney's bad behavior with prospective consumer attorneys I would also be inquiring about how I might be able to vacate the judgment.

 

A bar member being paid to defend a collection case on behalf of a consumer and losing to a JDB DC attorney (presumably for the full amount of alleged debt) is impressive to me. But not in a good way.

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I would only engage an attorney for litigation to win on my behalf. If they cannot or will not win, they can stay on the porch IMHO. My due diligence would involve looking into a potential attorney's experience, win loss ratio in similar cases, and other pertinent information as to their odds of assisting me in a litigation win.

 

NO attorney not even the best in the field can guarantee a win.  No baseball player bats .1000.  I would be HIGHLY suspicious of ANY lawyer that guaranteed a win.  Even if you had all the evidence in the world it doesn't mean the judge doesn't get a wild hair up their butt and rule against you.  How is that the lawyer's fault. 

 

I know you love to hate lawyers but really your generalizations are not helpful.  They aren't even accurate.

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I don't want to sue anyone or go to the bar. I'm not in the habit of just going after anyone. Here are the basic reasons I am not happy with what happened. Please note, I know and he did say that there were no guarantees. This is not about a broken promise of a win.

 

1) He assured me that even if the case was lost it could be appealed.

2) No paperwork was ever completed on time and it wasn't until we asked for it or reminded the lawyer that it hadn't been sent, that it was actually sent.

3) It took days to weeks to get answers to questions we had and often just as long to find out what was happening with paperwork.

4) An e-mail written by the attorney actually representing my husband left the door open for the plaintiff to supoena a piece of paperwork from my husband that seemed to be the tipping point for the judge to use the likely ruling.

5) The attorney actually representing my husband did not object to anything in court

6)After the loss my husband immediately told the current lawyer that we needed to try to make another dealer at least set up payments for as low as possible. We also wanted to file the appeal. She did not contact the plaintiff's lawyer, she did not file the appeal, she did not respond to our calls or e-mails and then didn't give the judgement interrogatories to the original lawyer until days before they were due. We were given 2 days to get it together and had to get an extension.

7)All questions we ever asked were answered in vague terms or with, it's up to you.

8) The lawyer representing us was not actually a part of the law firm we hire but was an associate of his. She no longer works with him after this case.

9) The plantiff offered a really low settle net right before the trial. Although it was my husbands ultimate decision to go into court, it was because the lawyer told him that they wouldn't have offered it if the case wasn't really weak. 

 

We just don't want to owe $12,000 to a JDB on the likelihood that they own the debt and because the lawyer we hired didn't file anything in time ( and we didn't know there was a timeframe being missed) we don't seem to have options.

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1) He assured me that even if the case was lost it could be appealed.


 


It CAN be appealed.  EVERY losing litigant has the right to appeal a verdict.  There is nothing incompetent about this.  The very next question after this statement should have been "what are the time frames to file the appeal if we need to?  


 


2) No paperwork was ever completed on time and it wasn't until we asked for it or reminded the lawyer that it hadn't been sent, that it was actually sent.


 


This is something that clients often misunderstand.  As long as the paperwork is filed by the deadline with the court then it is fine.  You are not the only client and your suit is not the only one the lawyer is working on.  Sometimes the amount of attention a client believes they will get in hiring a lawyer is dramatically different than what happens in reality.  


 


3) It took days to weeks to get answers to questions we had and often just as long to find out what was happening with paperwork.


 


Before I hire a lawyer I establish the basis for contact.  i.e. if I have a question how do you prefer I contact you?  The next question is XYZ needs to be filed.  When can I expect to hear from you regarding this?  The establishes realistic time frames for both sides.  Another misconception clients have is that they paid a fee for representation and that means they can call the attorney any time they want and talk ad nauseum.  ANY time the lawyer gets on the phone with you, answers emails, or works on your case is BILLABLE time.  


 


4) An e-mail written by the attorney actually representing my husband left the door open for the plaintiff to supoena a piece of paperwork from my husband that seemed to be the tipping point for the judge to use the likely ruling.


 


Unless you can prove that the plaintiff would not have discovered this anyway as part of their own interrogatories this isn't incompetent either.  


 


5) The attorney actually representing my husband did not object to anything in court


 


Clients say this A LOT.  The attorney cannot object to something simply because you WANT him to.  There HAS to be a legal basis backing up the objection.  


The rules of civil procedure are strictly adhered to for lawyers and yours cannot simply say "i object" without backing it up.  Even if he had objected EVERY time you think he should have it does not mean the court would have upheld it.


 


6)After the loss my husband immediately told the current lawyer that we needed to try to make another dealer at least set up payments for as low as possible. We also wanted to file the appeal. She did not contact the plaintiff's lawyer, she did not file the appeal, she did not respond to our calls or e-mails and then didn't give the judgement interrogatories to the original lawyer until days before they were due. We were given 2 days to get it together and had to get an extension.


 


Once you lost the plaintiff has no obligation to agree to a new deal and they frequently DO NOT unless you reside in one of four states where they cannot garnish wages and you own nothing.  If you have assets they can go after once they have a judgment they typically go after them instead of making a deal.  Why should they?  The whole reason you are being sued by them is for NOT PAYING as agreed.  


 


If you got an extension to file the interrogatories then there was no harm to the case.  A delay:  yes but they were accepted by the court so this won't help you.


 


7)All questions we ever asked were answered in vague terms or with, it's up to you.


 


It IS up to the client.  If you were unhappy why did you not get the original lawyer back on the phone and ask what was going on?


 


8) The lawyer representing us was not actually a part of the law firm we hire but was an associate of his. She no longer works with him after this case.


 


If you were this unhappy LONG before going to trial you had the option to get with the lawyer you hired and demand he take over the case as agreed when you hired him or you will find another lawyer then DO IT.  You chose to stay with them.


 


9) The plantiff offered a really low settle net right before the trial. Although it was my husbands ultimate decision to go into court, it was because the lawyer told him that they wouldn't have offered it if the case wasn't really weak. 


 


All of which may be true.  It doesn't mean that the court doesn't rule differently.  The ONE factor neither side controls is the judge's ruling.


 


The problem you are going to have is that as the defendant regardless of hiring a lawyer it is YOUR responsibility to know what time frames are in play to file an appeal.  The retainer you paid likely covered the first case NOT an appeal.  If you did not re-hire the firm for the appeal then they would not file it automatically.  Based on your list of complaints I do not see a basis for malpractice or a Bar complaint.  While you didn't get Clarence Darrow I don't see anything that screams outright incompetence.  I would start by consulting another lawyer and seeing what options you DO have and do it ASAP before you lose even more ground.


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Guest usctrojanalum

Honestly, if you're not going to make a bar association complaint or seek the opinion of another attorney in regards to if a legal malpractice has occurred you are just plain ole out of luck.  

 

If you feel like you have been wronged by inadequate counsel, at the vert least you should be requesting a refund of any legal fees you paid him.

 

I actually disagree with clydemom.  I think there may be a case for malpractice, not returning phone calls, missing deadlines, stating that the reason why the settlement offer is low because they don't have a strong case, then proceeding to lose the case.... all of that at least leaves a question of fact if malpractice has been committed.  

 

I don't have any personal experience for malpractice claims, but just going by the "eye test" it does seem like you've been wronged here.

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We just don't want to owe $12,000 to a JDB on the likelihood that they own the debt and because the lawyer we hired didn't file anything in time ( and we didn't know there was a timeframe being missed) we don't seem to have options.

 

Your only option is appeal if you don't want to owe that money. If that option is unpalatable to you, then you need to pay them. Things will escalate quickly if you do nothing and it gets ugly very fast which I know of first hand.

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I don't want to sue anyone or go to the bar. I'm not in the habit of just going after anyone. Here are the basic reasons I am not happy with what happened. Please note, I know and he did say that there were no guarantees. This is not about a broken promise of a win.

...

5) The attorney actually representing my husband did not object to anything in court

...

We just don't want to owe $12,000 to a JDB on the likelihood that they own the debt and because the lawyer we hired didn't file anything in time ( and we didn't know there was a timeframe being missed) we don't seem to have options.

Options (consult with a competent consumer attorney and bar complaint) have been suggested. If those are not wanted/warranted it would seem to severely limit a party's options in a post-judgment situation.

 

5). - A JDB DC attorney actually spoke in court and said nothing worthy of a valid objection by the opposing party or their attorney?! I suppose it could happen but the odds are so low they would be hard to calculate. Every OC DC attorney opposing me stated something with a valid reason to object in court. YMMV, but I would not bet on it. I always want to have my jurisdiction's common objections at my fingertips in any court proceeding where opposing might speak. An OC's collection case doesn't improve in quality and ease of proving up all the required elements of a cause of action by selling it downstream to a JDB. I think it is safe to assume the opposite. The JDB would have a tougher time proving up all the required elements than the OC.

 

If I hired an attorney I would not be surprised if they tried to slip in objectionable material past an incompetent opposing attorney. The judge can sustain or overrule an objection by opposing.

 

Honestly, if you're not going to make a bar association complaint or seek the opinion of another attorney in regards to if a legal malpractice has occurred you are just plain ole out of luck.  

 

If you feel like you have been wronged by inadequate counsel, at the vert least you should be requesting a refund of any legal fees you paid him.

 

I actually disagree with clydemom.  I think there may be a case for malpractice, not returning phone calls, missing deadlines, stating that the reason why the settlement offer is low because they don't have a strong case, then proceeding to lose the case.... all of that at least leaves a question of fact if malpractice has been committed.  

 

I don't have any personal experience for malpractice claims, but just going by the "eye test" it does seem like you've been wronged here.

DITTO

 

Your only option is appeal if you don't want to owe that money. If that option is unpalatable to you, then you need to pay them. Things will escalate quickly if you do nothing and it gets ugly very fast which I know of first hand.

Perhaps a successful malpractice or other cause of action against the attorney might be used to mitigate the pain of the judgment damages IDK. That would be a question for a competent consumer attorney if there was interest in pursuing that avenue.

 

The facts, as stated here, are that a bar member lost to a JDB DC attorney. A consumer that is unwilling or unable to pursue the matter (assuming there is a matter to be pursued, according to a competent consumer attorney) is going to have to deal with post-judgment aftermath.

Negotiation pre-judgement is all about leverage. I would speculate (lacking experience) that post-judgment negotiation is all about leverage. Exempt assets and income might be one type of leverage. State specific limits to wage garnishment may be another point of leverage pushing toward a possible lump sum settlement. Other than a credible threat of BK or being completely exempt on income and assets I am not aware of any significant leverage a judgment debtor might have. Others may be more familiar with available leverage tools and how best to negotiate a lump sum offer.

 

The JDB is in an enviable position of being able to use big leverage to collect 20 times what they paid in purchasing that digital data. My take away is that it is always my case to prosecute or defend if my name is on the caption. The judge, opposing, any attorneys are along for the ride. I control the trial court judge by making a proper record for appeal and timely appealing any of their reversible errors.

 

Best of success to the OP in an tough situation.

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I guessI should have been more clear. We are willing to go to court or the bar, I just didn't want to seem like someone whining becsuse they lost and wanted to start going after their lawyer wilily nilly.

 

I have looked at the rules in MD and without a very specific reason,there is a very limited tme to file the appeal. The time to file that appeal passed while we thought the lawyer was filing an appeal.

 

I am also aware that we are not the only clients. After the first merit hearing things did not go very well. I called the original lawyer and said we weren't happy, that things had gone badly, that we almost lost that day because paperwork hadn't been filed in time (even after I had followed up with them about filing it.)

We hired an attorney because neither of us know the law well and at the time could not spend hours and hours trying to figure it out. We hired someone for their knowledge of the law and for knowing what had to be filed when.

 

__________________________

 

As for leverage in a deal. We have nothing to take and still make very little money. My husband has contacted the Plantiff's lawyer, by e-mail, suggesting slump sum payment as we have nothing to take and that given our present finical situation we didn't want to enter into a payment agreement that we might not be able to honor if our income goes down again.  The lawyer said he would talk to his client and get back to us. That was about 1.5 weeks ago. 

 

Sincethey told usto wait for an answer, do we just wait to hear from them? No previous agreement was made.

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