September 9, 2010

Too Late for a Lawyer When the Trial is Over

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This e-mail stated: “We were were sued by our landlord as “holdover” tenants and the landlord won.” (“Holdover” tenants are basically living in somebody else’s property without any legal right to do so. The penalties are much more severe than “evicting” tenants who had a valid right to live there, and who the landlord just doesn’t want to rent to any more).

“We went to trial ‘pro se’” (which means on their own, without a lawyer. Being “pro se” is a mine field – and a party can lose his/her shirt).

“We feel like we need to talk to a lawyer who ‘knows what s/he’s doing’ in landlord tenant law, along with real estate agents and the various areas of complaints for fraud, misrepresentation and breach of confidence, and so forth…” (the tenant apparently is thinking about actions against somebody for fraud, misrepresentation, etc. The trial is OVER and they lost. Starting over with new legal theories is unlikely to be an option. And even if it were an option, the case would be a complicated, expensive, nightmare).

On examining the Court file, it appeared that these tenants did a relatively good job in a complicated case. Especially when the lawyer for the landlord was a well known, competent and respected attorney, whose arguments would be listened to very carefully by most Associate Circuit Court Judges, and opposing attorneys. It should be noted that neither the Judge nor the lawyer for the opposing side is obligated to tell a “pro se” party when they are making mistakes.

It was almost three months from the time the petition was filed until they had their trial, and during that three months there were motions, discovery, counter-motions, and amended pleadings that ordinarily would take a lawyer to understand. Since the tenants seemed to do relatively well, it is not unlikely that both the Judge and the opposing lawyer assumed that the tenants may have been getting advice from a friend or family member who was a lawyer. If so, that lawyer should be the one to advise them now. The trial is over, and the option(s) now, with very strict deadlines, would be a “Motion to Reconsider” the decision, and, if/when the Judgment is affirmed, an Appeal. Maybe.

But most lawyers are reluctant to get involved with a case that has the extensive history that this case has. It takes a lot of expensive time to carefully review the facts and legal theories to the extent necessary to provide the losing party with an understanding of where the case went wrong, and viable options which may remain.

Posted by Peggy S. Hedrick at 6:14pm

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