Winning before trial
By Colin Jorgensen, Risk Management Litigation Counsel
The Trial, by Franz Kafka, tells the story of “K.” — an innocent banker who is arrested by officials of a totalitarian government and charged with vague crimes under invisible law. K. endures a hopelessly unfair pre-trial process and a trial before an all-powerful court. He is convicted by the corrupt court, despite his actual innocence. He is transported out of town by the arresting officials and executed in the name of the law. By the end, K. doesn’t even resist his fate because he has been rendered completely hopeless by the unfair prosecution and trial.
The frightening tale of The Trial stands in such stark contrast to the American judicial system, which is fortified with constitutional guarantees like due process, burdens of proof and evidentiary standards equally applicable to all parties, the right to counsel, and the right to a jury trial. But even a perfectly designed justice system can be imperfect in practice. Our brilliant system produces justice in most cases — but justice cannot be guaranteed in all cases at all times.
As your lawyers at AACRMF, it is our job to defend you within the judicial system and secure the best result we can in any given case. We represent you in civil cases in which county governments and/or county officials are sued as defendants. We cannot change the facts of a case, or the law applicable to those relevant facts. We can help you play defense against a lawsuit, within the confines of the facts and the law. You might think of us as your defensive coaches. But you — the public servants who are defendants in the lawsuits we endure together — are the players.
It goes without saying that the best way for you to play defense against liability in our courts is to follow the law and follow the policies of your agency. Take your training to heart, be honest and fair in your actions, and adhere to best practices such as documenting use of force incidents and employment actions in the workplace. We offer countless trainings, and we make ourselves available to advise you about best practices — but that’s not what this article is about. Sometimes, you do everything right and you still get sued. That’s what this article is about. This article is about how we can work together to play offense when you are sued. Our goal as your lawyers is to win each case, and do so as quickly and painlessly as possible. You can help us win your case by following a few simple steps when you find yourself served with a lawsuit related to your work in county government.
First, as you have probably heard us say before (because it is so important), always notify us immediately when you are served with a lawsuit. Even if it is the most bogus lawsuit you’ve ever seen, your lawyers need to review it and if it falls under AACRMF coverage and we will represent you, we need to file a response to the lawsuit on your behalf. A defendant has a very short time to file a response to a lawsuit after service, and when a defendant fails to do so, the penalty is harsh — default judgment, which basically means the plaintiff wins without having to prove or do anything. I’m hard-pressed to think of a greater injustice than a default judgment in favor of a plaintiff who files a meritless lawsuit, but that is exactly what happens if a defendant is served with a lawsuit but fails to respond. Send the lawsuit to us immediately. Let us get to work on your behalf right away. (Side note: please do not accept service of lawsuits on behalf of ex-employees who no longer work for the county and independent contractors who work in county facilities but are not county employees).
Second, in all cases, regardless of merit, we will save a lot of time and heartburn over the life of the litigation by taking care of certain business right away. We will send you detailed letters about this early phase of the case when you notify us that you’ve been served with a lawsuit. But in sum, you must take steps to preserve all relevant evidence — especially documents and written communications such as reports and emails. The easiest way to ensure this is to gather everything that might possibly be relevant, and send it all to us at AACRMF at the beginning of the case. If you give us everything up front, you will only have to do this exercise once. We also need accurate contact information for individual defendants we will represent in the case. In certain types of cases, we will send written questions to those individual defendants so we can get their side of the story and gather personal contact information for them, so we can stay in touch throughout the case as needed. Please respond to those requests from your lawyers, and encourage your employees to do so as well. We need to learn everything we can about your case in the beginning, so we can develop the best strategy for your defense throughout the case.
Third, always remember that we are on the same team and we share the same goal — to win the case if possible and do it as quickly and painlessly as possible. If I leave you a voicemail or send you an email or leave a message with your spouse or mother or roommate asking you to give me a call, please respond. This means I’m working on your case, working for you. It usually means I have a simple question that will be easy for you to answer, or I’ve prepared a draft affidavit of your testimony that I’d like to review with you for accuracy. I promise I will not call to lecture you or threaten you or anything else terrible. I am your lawyer, which means I work for you and I represent your interests in court.
When things go right, which happens the majority of the time, we are able to work with you in defense of litigation to play offense instead of defense, even though you are a “defendant.” We play offense by filing a summary-judgment motion at the proper time in the case. This is where we present your evidence, make your best legal arguments, and ask the court to enter judgment in your favor and dismiss the lawsuit without a trial. We start thinking about your summary-judgment motion at the beginning of the case. Sometimes, I start drafting the legal brief the moment the case is assigned to me, even though it may be a year before it’s time to file the motion. All we need from you is help with the steps described above. If the facts and the law are right, as they often are, and we have what we need from you, as we usually do, we will be able to file a winning motion on your behalf. That is how you win your case before trial.
And that is how we keep Franz Kafka firmly in the realm of dystopian fiction, where he belongs.