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  1. #1
    aliachase2007 is offline Member
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    Should I settle out of court

    What is the name of your state? TEXAS
    I went to court the other day for the second time. The first time I won through default since the defendant didn't show up. About 11 days later his lawyer sends a letter asking for a New Trial. Thats what this one was, asking for a new trial, and he was granted one, other then that, nothing new I have 20days to amend it, to add names anything else.

    I don't have a lawyer, I can't afford one, and I know I'm in the right in this case and have enough evidence to prove it. But I have a load of questions that keep popping up.

    After court, his lawyer asked to speak with me. He asked "what can we do to settle this" Which I'm guessing is a good thing, but not %100 sure. So now I'm trying to decide what a fair amount is to ask for, since the max in small claims is 5 grand and I paid him (the company 2750). As much as I'd love to ask for 4500+ to cover damages and everything I don't think thats fair to do in a settlement. I know he doesn't play fair(the guy, not the lawyer), but not having a lawyer and knowing the laws and all I can't play the games. His lawyer asked me to write him a letter/settlement offer and I have no idea what to put in it. He said pretty much just what we want and also to include damages. If I do this, they can't use it against me later can they?

    If we go to court I'd like to ask for the max in compensatory damages as well as punative damages(I know 2 other unsatisfied customers, one of which is taken him to court also, but has a lawyer) Is it right to ask for both? How much can one normally win?

    Thanks!!
  2. #2
    BL
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    So now I'm trying to decide what a fair amount is to ask for, since the max in small claims is 5 grand and I paid him (the company 2750). As much as I'd love to ask for 4500+ to cover damages and everything I don't think thats fair to do in a settlement.
    Are you saying the dispute is the 2700 ?

    What other damages did you suffer ?

    Yes, the lawyer could bring up what you are/were willing to settle for , in case you go for the gold .

    Make your offer reasonable , and the lawyer will probably tell his/her client it would be in their best interest to settle .

    This should have been done before any court petitions were filed .
  3. #3
    aliachase2007 is offline Member
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    Quote Originally Posted by BL View Post
    Are you saying the dispute is the 2700 ?

    What other damages did you suffer ?

    Yes, the lawyer could bring up what you are/were willing to settle for , in case you go for the gold .

    Make your offer reasonable , and the lawyer will probably tell his/her client it would be in their best interest to settle .

    This should have been done before any court petitions were filed .
    We paid the company 2750 in July 2007. They were to repair our mobile home (level, skirt and install a brand newduct system), but instead all they did was take the skirting off which allowed cats to tear out the insulation. This caused the electric bills to be high, the home to be really uncomfortable. Cats got in the trailer and destroyed our carpet, wehad to buy new flooring. Fleas populated the vents. There was cat urine and feces all under and around the trailer. We bombed weekly and did everything we could think of to keep the cats away but nothing worked.
    In August, the last time they came they took our old skirting (which came with the trailer) plus the new skirting they were going to put on the trailer(theft?). They told the BBB they left all materials at our home. The workers drove over our walkway and bent the wood so now its not in a line. We had to buy new insulation and plastic for under the trailer, hire someone to fix the duct system and the insulation/plastic, buy new skirting and level the trailer and put new skirting on. Because out electric bills were so high we were unable to pay on time alot of times and had termination notices.
    I am on disability from brain surgery, and I live with my mom who has heath problems (heart, diabetes, high blood, chloresteral, etc) We are low income, and aren't on public assistance, other then my disability of 674 amonth. I've got a3 yr old. Luckily my daughter and I were able to stay with my sister during the summer. My mom stay as often as she could, but she was worried something would happen to the trailer. When my daughter and I visited my mom, she'd get flea bites, if she happened to see her dad and still had bites on her, her dad would ask, pretty much accusing me of abusing me.
    Mom stopped going to the Dr and stopped taking her meds because we couldnt afford it. Recently (3/18-3/20) she was in the hospital due to chest pain and had to have surgery. This week (4/8) she went back to the ER for pain in her neck. I know this isn't part of the suit, but its stressful and very scary to deal with.

    I really understand this should have been in the original suit to begin with, but with having no direction and not knowing what I was doing and just wanting to get it over with (plus we hadn't had the work fixed yet) I asked for just what we paid him since thats all I really had proof of, besides pictures. Because I felt that by having no actual proof at the time, the judge wouldn't listen to my side. Since then we were able to get the work done and get all the documents and things we need to prove damage and stuff.
    thanks!
  4. #4
    BL
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    As much as I'd love to ask for 4500+ to cover damages and everything I don't think thats fair to do in a settlement.
    What's fair is to ask in your settlement all the damages you can prove , send copies of the proofs with the settlement , and add some for inconvenience from their breach of contract .
  5. #5
    dcatz is offline Senior Member
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    First, while I don’t agree with BL and do submit that a settlement proposal can be tendered in such a way that it is not admissible, I do endorse settlement and also discourage writing a letter. Is that confusing? If so, it’s because you need to understand as much about settlement as you do about the law of the case.

    Rule One: there is no such thing as “slam-dunk” litigation. Run from anyone who offers guarantees. The best case can be lost. TX allows lawyers in Small Claims. The rule is truer when it’s professional against novice. You may be a genius and he may be a klutz; it’s still true. Settlement eliminates the variable and brings finality.

    Rule Two: a good settlement leaves everyone slightly unhappy. It’s like buying a car or house. A deal is struck and both sides wonder if they could have done better. Maybe yes and maybe no. The point is that you got what you wanted on terms you can live with. The alternative is to walk away empty-handed.

    Rule Three: No letter (yet, if ever). You’re the plaintiff. They’d like a settlement or you wouldn’t have gotten the call. (We have no idea why.) You don’t bid against yourself. Whatever is proposed sets the parameters for all further negotiations and, with all due respect, you don’t have the experience in every sense. You (a) propose a figure that is too high. That kills further negotiations. Go directly to trial. Do not pass GO, or you (b) propose a figure that is lower than you want. That conditions the other side. Their counter will always be lower. They will never go up. They must bid first.
    Rule Three(a): you won’t be awarded punitives in Small Claims. The attorney will know this. You must be prepared to justify any offer. Look for what you can get immediately and without risk. Don’t demand what the court won’t give you. Then, they have nothing to lose by taking you to trial (see Rule One).

    Rule Four is procedural: TX is like every other state. Your claim was for $X. You feel that it coulda/shoulda been for $XX but it wasn’t. If you go to court a second time on the same case, it can only involve $X. If you can amend to increase, do it, but I just read the statute and don’t think you can without dismissing the original action and re-filing and re-serving. I’m not TX. If you feel that you can double your existing claim, you might want to consult with TX counsel.

    This could go on and on. Negotiating settlements is part art and part science. Maybe you get lucky out of the box and maybe there are things that you haven’t mentioned. BL asked if your damages were $2,750, and you added further information. I suspect that the defendant is saving himself more than $2,000 in attorneys’ fees to fight you, not offering you a winning lottery ticket, so you should be sure of your “walk-away” position, when you start to negotiate.
  6. #6
    aliachase2007 is offline Member
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    Quote Originally Posted by dcatz View Post
    First, while I don’t agree with BL and do submit that a settlement proposal can be tendered in such a way that it is not admissible, I do endorse settlement and also discourage writing a letter. Is that confusing? If so, it’s because you need to understand as much about settlement as you do about the law of the case.

    This could go on and on. Negotiating settlements is part art and part science. Maybe you get lucky out of the box and maybe there are things that you haven’t mentioned. BL asked if your damages were $2,750, and you added further information. I suspect that the defendant is saving himself more than $2,000 in attorneys’ fees to fight you, not offering you a winning lottery ticket, so you should be sure of your “walk-away” position, when you start to negotiate.
    Thank you for all the info. It is confusing, but I'll figure it out Just gotta see how to go about doing the settlement without a letter now. I guess I misunderstood BL, but wanted to clarify where the 2750 was, no we dont have that much in property damages, but adding everything up probably comes close to 2 grand (compensatory damages). I didn't know we couldnt do punitive in small claims, thanks for telling me that, since I was going to ask for some.
  7. #7
    dcatz is offline Senior Member
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    Just gotta see how to go about doing the settlement without a letter now.

    I can see now how that might have been confusing. My apologies.

    I simply meant that they make the first move, not you. Invite it. Explain that you have a figure in mind, but you're not going to bid against yourself. Ask what they're proposing and how they justify it. You'll either get an agreement or learn a lot about the position they will take at trial. Either is good.

    Probably everything can be done by phone until you reach an agreement. That should be confirmed in their letter to you.
  8. #8
    BL
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    While I agree with Dcatz .

    I'm not sure if the lawyer could offer a settlement amount without knowing your actual damages , but you can certainly ask what they are willing to settle for .

    If it's more or around that figure , great .

    Thus why I suggested what I wrote , proving your actual damages and asking for it in settlement .

    What was the original amount that you were awarded by default ?

    Does this lawyer already know from court what your actual damages are through the proof you provided in court , or isn't the lawyer aware of your proofs and your actual damages ?

    After court, his lawyer asked to speak with me. He asked "what can we do to settle this" Which I'm guessing is a good thing, but not %100 sure.
    What was your response ?
  9. #9
    aliachase2007 is offline Member
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    Quote Originally Posted by BL View Post
    While I agree with Dcatz .

    I'm not sure if the lawyer could offer a settlement amount without knowing your actual damages , but you can certainly ask what they are willing to settle for .

    If it's more or around that figure , great .

    Thus why I suggested what I wrote , proving your actual damages and asking for it in settlement .

    What was the original amount that you were awarded by default ?

    Does this lawyer already know from court what your actual damages are through the proof you provided in court , or isn't the lawyer aware of your proofs and your actual damages ?



    What was your response ?
    I pretty much told him we'd love to settle out of court. He told me to write him a letter/settlement with a offer with damages/proof. I emailed him Thursday asking if we couldn't meet in person and discuss the settlement, since I felt we could hopefully come to a settlement better that way, so far I've gotten no response. He knows what we paid the company but wants for his records damages and stuff. Friday I emailed him asking what they thought a good settlement would be, thinking if I knew what they thought it would help me make a decision better. Nothing yet. I'll have to call him Monday.

    In the default judgement we were awarded 2750, (plus court cost and interest), which was what we paid the guy and what I originally asked for. I feel tho that since he is fighting it by not paying I should go after damages, which I know should have been in the original suit, but due to not having the home fixed and not having proof of everything I didnt want to include it. We were willing to settle for what we paid him if he paid it the first time around, since not, and we're having to keep going to court and stuff (very stressfull) we'd like to amend or go after damages now.

    I sent in the amendment the other day, asking to add my mom as a plaintiff, the business as the defendent as well as extra money for damages and it was denied and now I'm being told I have to re file in Tarrant county(where the business is) which is going to be an extra 40$. Thats all confusing to me, since the judge told me I had 20 days to amend the suit. Does that mean the suit was denied now and I have to re sue him?
  10. #10
    dcatz is offline Senior Member
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    I sent in the amendment the other day, asking to add my mom as a plaintiff, the business as the defendent as well as extra money for damages and it was denied and now I'm being told I have to re file in Tarrant county(where the business is) which is going to be an extra 40$. Thats all confusing to me, since the judge told me I had 20 days to amend the suit. Does that mean the suit was denied now and I have to re sue him?

    No, but see Rule Four in Post #5. In the simplest terms, you can usually amend to “fix” small matters for parties who already have notice of and are a part of the action. However, when the amendment changes essential elements after the case has gone to judgment – eg. adds new parties, increases the claim amount etc. – you’re creating a whole new claim and must abide by the rules that would apply to that “new claim”.

    I suggest that you try to reach an agreement based on what you started with or consult with your own counsel about dismissing and re-filing in accordance with your current view of the case. Your view has changed, and you’re trying to re-mold the original. It’s a square peg in a round hole and it’s not working.
  11. #11
    aliachase2007 is offline Member
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    I want to thank everyone for all the great advice!! As stressfull as this is, I know I'm smarter now by having help from you all.

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