Question for lawyers - Do you charge clients for your mistakes

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

I provided the attorney with the correct address, the address for the defendant with the Secretary of State had the correct address. The firm was using the defendant's outdated address that the firm had in their system.

Had do you know that the address had been updated with the Secretary of State's office ? Did you check prior to giving the attorney the address ?

Failure to include a copy of the Complaint (the lawsuit) might be the fault of the process server or, more likely, the Defendant was being untruthful about the lack of the Complaint in an attempt to get the case dismissed.

Any reputable process server would be aware that the Complaint was missing & would contact the attorney who had hired the process server.

My gut feeling is that the OP is mistaken.

I am a lawyer and I am currently represented by a lawyer. There are a lot of really, really bad lawyers who screw up all the time. This is extremely plausible to me. I had to fire my first lawyer and could easily get him sanctioned if I wanted to put in the effort.

You may be an attorney, but I doubt that you do litigation / trial work.

The opposing party, the Defendant, filed a challenge to the sufficiency of the service of process and appeared in court for a hearing. In notice pleading jurisdictions (the majority of jurisdictions including federal court) simple notice of a lawsuit is enough. Obviously, Defendant received such notice or Defendant would not have filed a challenge based on insufficient service of process.

Furthermore, the process server typically is required to file a sworn affidavit with the court as to service of process. Often the process server is a deputy sheriff or a professional process server with an established reputation. The judge believed and ruled that the service was sufficient under the law of the relevant jurisdiction. If the Defendant wants to appeal the ruling by the Trial Court Judge or by, if in federal court, the Magistrate Judge,then the Defendant may do so.

I'm exclusively a litigator. I've never done transactional or advisory work in my life.

The client should not be paying for an obvious error. If OP is misstating the facts, that's one thing. But accepting what OP is describing as true, they shouldn't pay.

As an aside, federal court isn't notice pleading anymore? See Twiqbal.

You are wrong. Federal courts maintain a practice of notice pleading except in certain cases, such as fraud, where particularity is required in the pleading.

You refer to Twiqbal which requires plausibility, not particularity.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

I provided the attorney with the correct address, the address for the defendant with the Secretary of State had the correct address. The firm was using the defendant's outdated address that the firm had in their system.

Had do you know that the address had been updated with the Secretary of State's office ? Did you check prior to giving the attorney the address ?

Failure to include a copy of the Complaint (the lawsuit) might be the fault of the process server or, more likely, the Defendant was being untruthful about the lack of the Complaint in an attempt to get the case dismissed.

Any reputable process server would be aware that the Complaint was missing & would contact the attorney who had hired the process server.

My gut feeling is that the OP is mistaken.

I am a lawyer and I am currently represented by a lawyer. There are a lot of really, really bad lawyers who screw up all the time. This is extremely plausible to me. I had to fire my first lawyer and could easily get him sanctioned if I wanted to put in the effort.

You may be an attorney, but I doubt that you do litigation / trial work.

The opposing party, the Defendant, filed a challenge to the sufficiency of the service of process and appeared in court for a hearing. In notice pleading jurisdictions (the majority of jurisdictions including federal court) simple notice of a lawsuit is enough. Obviously, Defendant received such notice or Defendant would not have filed a challenge based on insufficient service of process.

Furthermore, the process server typically is required to file a sworn affidavit with the court as to service of process. Often the process server is a deputy sheriff or a professional process server with an established reputation. The judge believed and ruled that the service was sufficient under the law of the relevant jurisdiction. If the Defendant wants to appeal the ruling by the Trial Court Judge or by, if in federal court, the Magistrate Judge,then the Defendant may do so.

I'm exclusively a litigator. I've never done transactional or advisory work in my life.

The client should not be paying for an obvious error. If OP is misstating the facts, that's one thing. But accepting what OP is describing as true, they shouldn't pay.

As an aside, federal court isn't notice pleading anymore? See Twiqbal.

You are wrong. Federal courts maintain a practice of notice pleading except in certain cases, such as fraud, where particularity is required in the pleading.

You refer to Twiqbal which requires plausibility, not particularity.

Yes, a plausibility standard is different from both a heightened pleading standard and the old notice pleading standard. The plausibility standard is something in between notice pleading and fact pleading.

[Anonymous]

^https://cardozolawreview.com/notice-pleading-in-exile/

"Much of the scholarly attention devoted to Iqbal and Twombly has noted (and typically decried) the Supreme Court’s rejection of the lenient notice-pleading standard."

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

I provided the attorney with the correct address, the address for the defendant with the Secretary of State had the correct address. The firm was using the defendant's outdated address that the firm had in their system.

Had do you know that the address had been updated with the Secretary of State's office ? Did you check prior to giving the attorney the address ?

Failure to include a copy of the Complaint (the lawsuit) might be the fault of the process server or, more likely, the Defendant was being untruthful about the lack of the Complaint in an attempt to get the case dismissed.

Any reputable process server would be aware that the Complaint was missing & would contact the attorney who had hired the process server.

My gut feeling is that the OP is mistaken.

I am a lawyer and I am currently represented by a lawyer. There are a lot of really, really bad lawyers who screw up all the time. This is extremely plausible to me. I had to fire my first lawyer and could easily get him sanctioned if I wanted to put in the effort.

You may be an attorney, but I doubt that you do litigation / trial work.

The opposing party, the Defendant, filed a challenge to the sufficiency of the service of process and appeared in court for a hearing. In notice pleading jurisdictions (the majority of jurisdictions including federal court) simple notice of a lawsuit is enough. Obviously, Defendant received such notice or Defendant would not have filed a challenge based on insufficient service of process.

Furthermore, the process server typically is required to file a sworn affidavit with the court as to service of process. Often the process server is a deputy sheriff or a professional process server with an established reputation. The judge believed and ruled that the service was sufficient under the law of the relevant jurisdiction. If the Defendant wants to appeal the ruling by the Trial Court Judge or by, if in federal court, the Magistrate Judge,then the Defendant may do so.

I'm exclusively a litigator. I've never done transactional or advisory work in my life.

The client should not be paying for an obvious error. If OP is misstating the facts, that's one thing. But accepting what OP is describing as true, they shouldn't pay.

As an aside, federal court isn't notice pleading anymore? See Twiqbal.

What is the "obvious error" ? And how do you know this ?

[Anonymous]

Anonymous wrote:^https://cardozolawreview.com/notice-pleading-in-exile/

"Much of the scholarly attention devoted to Iqbal and Twombly has noted (and typically decried) the Supreme Court’s rejection of the lenient notice-pleading standard."

The law review article cited by you asserts the opposite of the point that you are trying to make (if your point is that notice pleading is dead in the federal court system). The law review article reveals that notice pleading standard is still the standard in federal court, but it is complicated somewhat by the plausibility standard.

[Anonymous]

Anonymous wrote:

Anonymous wrote:^https://cardozolawreview.com/notice-pleading-in-exile/

"Much of the scholarly attention devoted to Iqbal and Twombly has noted (and typically decried) the Supreme Court’s rejection of the lenient notice-pleading standard."

The law review article cited by you asserts the opposite of the point that you are trying to make (if your point is that notice pleading is dead in the federal court system). The law review article reveals that notice pleading standard is still the standard in federal court, but it is complicated somewhat by the plausibility standard.

And the article notes that majority view is that we no longer have notice pleading in federal court...

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:^https://cardozolawreview.com/notice-pleading-in-exile/

"Much of the scholarly attention devoted to Iqbal and Twombly has noted (and typically decried) the Supreme Court’s rejection of the lenient notice-pleading standard."

The law review article cited by you asserts the opposite of the point that you are trying to make (if your point is that notice pleading is dead in the federal court system). The law review article reveals that notice pleading standard is still the standard in federal court, but it is complicated somewhat by the plausibility standard.

And the article notes that majority view is that we no longer have notice pleading in federal court...

Do you really want to base an assertion of a prevailing legal standard on a law review article ?

I enjoy your posts, but notice pleading is still the standard under the FRCP.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:^https://cardozolawreview.com/notice-pleading-in-exile/

"Much of the scholarly attention devoted to Iqbal and Twombly has noted (and typically decried) the Supreme Court’s rejection of the lenient notice-pleading standard."

The law review article cited by you asserts the opposite of the point that you are trying to make (if your point is that notice pleading is dead in the federal court system). The law review article reveals that notice pleading standard is still the standard in federal court, but it is complicated somewhat by the plausibility standard.

And the article notes that majority view is that we no longer have notice pleading in federal court...

Do you really want to base an assertion of a prevailing legal standard on a law review article ?

I enjoy your posts, but notice pleading is still the standard under the FRCP.

Yes because that rule hasn't been amended since Twiqbal. It is widely recognized that Iqbal and Twombly increased the pleading standard such that it is no longer a traditional fact pleading standard. We went from "no set of facts" to "nudge across the line from conceivable to plausible." State court notice pleading standards are much lower than the plausibility standard federal courts have. They're not the same.

[Anonymous]

OP, pay attention to all the lawyers who responded by asking for clarification, restated your original post, and then added a line or two of their thoughts. They probably bill their clients for these "services."

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:Your writing is unclear.

What is the issue with the address? Why did they go to the wrong address at first? Did you give the wrong address? if so, that's on you.

Not attaching the complaint was their mistake. I would recommend you strike associated costs from the bill.

I gave them the correct address. The defendant had a change of address about six months before the lawsuit was filed. I flagged the change of address to the attorney and paralegal.

This still doesn't make any sense. You claim you gave them the correct address, but then suggest that they relied on the address you gave them (as opposed to looking it up with the Secretary of State) and service was made at the wrong address. Which is it?

I think what OP is saying is something like this. Dispute arose several months ago at which point OP contacted a lawyer, had a consult or whatever and during the intake probably gave information about the opposing party including their address. The parties and their lawyers discussed, couldn't reach a resolution so OP decided to sue several months later. By this point, the other party had moved and then OP updated the lawyer with the new address but the lawyer did not update their files with the new address and therefore served the party at the old address.

[Anonymous]

Anonymous wrote:I'm the client. My attorney provided the process server with the wrong address to serve the lawsuit. I provided my attorney and paralegal with the correct address for the defendant. I thought they would obtain the address from more formal mechanisms such as the Secretary of State website vs. an email from the client. Second mistake, when the lawsuit was served, the complaint was not attached. The defendant was served again with the complaint attached. This led to a motion from opposing counsel to drop the lawsuit due to improper service. The judge denied the motion but seemed irked the complaint was omitted. I was billed for the legal fees and expenses related to the process server going to the wrong and then correct address and expenses for the hearing due to the omitted complaint. Is it common practice that the client is billed for errors made by the firm? I'm thinking of retaining another attorney. I would assume lawyers would be reluctant to take over a case where they have to clean up sloppy issues by the previous attorney.

I am an attorney. Your message is unclear. If you gave them the wrong address and they used it, that is on you not the attorney and yes, you would be charged for any repercussions. If I as the attorney made the error, such as not attaching the complaint, I would fix it without any cost to the client. That means not billing for any repercussions.

As for taking on a case after another attorney was on it, I have done it, but I am always a little wary of this because clients who move on may be the problem themselves. Expect some questions. If it was the attorney, which it sounds like it is, then I expect you can find another to take it.

[Anonymous]

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

But it's also reasonable to go by the official address. The client could have gotten it wrong.

[Anonymous]

Anonymous wrote:OP, pay attention to all the lawyers who responded by asking for clarification, restated your original post, and then added a line or two of their thoughts. They probably bill their clients for these "services."

Yes it's important to get the right information. If the original lawyer had taken time to clarify maybe this could have been averted.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

I provided the attorney with the correct address, the address for the defendant with the Secretary of State had the correct address. The firm was using the defendant's outdated address that the firm had in their system.

Had do you know that the address had been updated with the Secretary of State's office ? Did you check prior to giving the attorney the address ?

Failure to include a copy of the Complaint (the lawsuit) might be the fault of the process server or, more likely, the Defendant was being untruthful about the lack of the Complaint in an attempt to get the case dismissed.

Any reputable process server would be aware that the Complaint was missing & would contact the attorney who had hired the process server.

My gut feeling is that the OP is mistaken.

I am a lawyer and I am currently represented by a lawyer. There are a lot of really, really bad lawyers who screw up all the time. This is extremely plausible to me. I had to fire my first lawyer and could easily get him sanctioned if I wanted to put in the effort.

Really ? I doubt that you are an experienced lawyer. Also, if you are a lawyer, why do you need a lawyer ?

Is this really a question? Lawyers need lawyers at times in areas outside of their expertise. I am a lawyer who has hired lawyers 2x in my life. I also have many lawyers as clients.

[Anonymous]

Anonymous wrote:

Anonymous wrote:My understanding is OP is saying the defendant is a business who changed their legal address six months before the suit was filed. OP provided the updated, correct address to the attorney, but the attorney went off the Secretary of State listing, which had not yet been updated, and therefore delivered it to the wrong address. Then, they served it again but without the complaint so OP had to pay for another hearing. So the second mistake was totally the firm's fault and the first is borderline (reasonable to go off Secretary of State address but if they paid attention to detail they might have noticed the client gave a different address and inquired).

But it's also reasonable to go by the official address. The client could have gotten it wrong.

OP said the official address was correct at the time of the complaint being served. The attorney’s office used the old address rather than the updated one OP had provided, and apparently also rather than verifying with the Secretary of State, with whom the address had been updated, per OP:

“I provided the attorney with the correct address, the address for the defendant with the Secretary of State had the correct address. The firm was using the defendant's outdated address that the firm had in their system.”