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Civil case now w/ a jury and lawyers. should i continue?

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lvgamer

Junior Member
What is the name of your state? West Virginia is where the defendant resides. I am from out of state.

Quick synopsis: On a recent trip I visited a local restaurant for dinner. While waiting for the meal, I took out my laptop and began working. Soon after, a waitress came over and attempted to refill my drink and proceeded to drop the pitcher right on top of my laptop. Manager comes out, apologizes and explains the waitress is new. He takes me aside (I bring witnesses) and he apologizes again and verbally says that the restaurant will pay for repairs. I attempt to get a written contract, but he disappears after saying he will "look for a pen".

I call him over the next few weeks and am given the run around. Eventually I reach the business manager and am told that although they may have promised to pay earlier (he admits this over the phone), that promise was made while they were "very busy" and they will no longer do so. These calls were recorded consistent with the laws of Ohio, where they were made.

I sent a letter of intent to sue and am ignored. I then file suit in West Virginia Magistrate Court for the appraised cost of repairs. Defendant hires a lawyer and elects for a jury trial, denying all charges. I am now to appear for the pre trial hearing

A few questions (and I realize the last one is subjective)
a) What am I supposed to do at this pre trial hearing? The clerk said that jurors may be picked, but will I have to do this since I am representing myself pro se? If so, does anyone have any resources or readings that may help with this process?
b) Will not having a lawyer affect my ability to win in the court room?
c) Is it possible that if I lose I will have to pay for the defendant's lawyer's fees?
d) Do I have a case? I did some research before filing and felt that they may be liable under negligence and/or breach of contract torts, but I am no lawyer. Will contributory negligence come into play?

I wish that i had found this site weeks ago, since i've been trying to go through this alone. Thanks in advance for any help
 


dcatz

Senior Member
Before addressing your questions, an aside: one might infer that you’re having second thoughts about this whole thing as it balloons and wondering if it was a good idea. Maybe I’m reading too much between the lines but, if not, it isn’t uncommon. You don’t mention the cost of repairs, but Magistrate Court has a $5,000 jurisdictional cap. If you’re thinking it may not be worth the effort, now is the time to commit or cut. You’re the plaintiff, and only you can do it. Talk to the defendant’s attorney and offer a “stipulation to dismiss, with each party to bear its own costs”. Odds are 99-1 that they’ll agree. If I'm wrong about the inference . . . .

What am I supposed to do at this pre trial hearing?

Probably not much. Jury trials are uncommon in Magistrate Court. My guess is that it was requested to intimidate you. I expect the judge to lay out the ground rules for trial and to try to settle the case without trial. Picking a jury doesn’t have to be rocket science. In Magistrate Court, 6 are picked from a panel of 10. Your case is fairly simple. If you have any say at all, select those who own computers, preferably laptops that they carry for work or school.

Will not having a lawyer affect my ability to win in the court room?

Possibly. It will if you don’t do your homework, establish a theory for your case and learn what you have to prove to prevail. With due respect, it doesn’t appear that you’ve done that yet. I say that based on some of the questions that you’re asking; WV isn’t my state, but answers are there. You need to homework starting yesterday. People lose cases that shouldn’t be lost, because they don’t prepare. The OP in this case won and did a better job than defendant’s attorney, but she was also better prepared.
https://forum.freeadvice.com/showthread.php?t=378408

Is it possible that if I lose I will have to pay for the defendant's lawyer's fees?

WV case law suggests that you have an argument in opposition in a negligence case. Learn it. Better still, don’t lose. This is a simple case. If it’s the lawyer and jury that are bothering you, call the courtroom and find out if a jury trial is scheduled before yours is due. If you can make the time, go and watch it.

Will contributory negligence come into play?

WV has rejected contributory negligence in favor of comparative negligence. Homework would tell you that. From your post, how did you contribute, assuming that wasn't WV law?

Did you sue the waitress as well as the restaurant? If you only sued the restaurant, you may have missed a viable defendant.

Have you decided on a theory of liability and prepared your case around it? Have you Googled “Respondeat superior”?
 
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