[Edward429451]

OK, I just need some legal clarification here. Hopefully An Attorney reads this and will clue me in..

Moderators please note that while the clarification asked for is not directly gun related, the case most certainly was gun related in that it involved all of my gun collection (that they could find!).

I went to court early this week. My attorney was sueing me in small claims trying to up the ante on the final bill of his handling my case. Idiot that he was, he figured I hadn't kept receipts and documentation regarding the case as it was several years ago.

I had all my ducks in a row, and counter claimed him for aproxx twice as much as he was suing me for. Today I get in the mail a letter which said they'd like to drop the whole thing. Small wonder. I'm supposed to sign a "Motion To Dismiss WITHOUT PREJUDICE" and return to them to file with the court.

My question is thus: Where does the 'Without Prejudice' leave him and/or me for possible future actions/claims?

I pretty much understand that without prejudice means that he is reserving right to a possible future claim(?), but am not 100% positive to the exact ramifications of it. I'm tempted to call his Atty., and tell them to drop the 'Without Prejudice' off of it to a simple "Motion to Dismiss."

Please help.:)

[Bill Hook]

As someone who just gone done with the hassle of going to small claims, as plaintiff, you'd be smart to ask that the case be dismissed "w/ prejudice" so that he has given up his future right to sue. My case was dismissed in this manner, after we agreed to settle.

I'm sure an actual attorney will give you better advice, but don't sign a thing.

Google, nolo.com, findlaw.com, etc would have some more simple info on motions.

[Carlos]

Don't sign a thing.

Dismissed with Prejudice means case all done.

Dismissed without Prejudice means that leaves things open for refiling the same action. You don't want that.

You want to sign a Motion to Dismiss With Prejudice.

Funny thing. Usually these Motions are filed after the parties have signed a Settlement and Release Agreement. You will want one of these, memorializing the parties' standing now and in the future. Then, you sign a Motion to Dismiss With Prejudice.

I'm not a lawyer, but I work for em. Sounds like your former lawyer is a shyster, as well as his attorney. I would file a Bar Complaint against his A$$.

If you want an example of a Settlement and Release Agreement, PM me, and I'll scare one up, from a real world case, just recently settled at our offices.

It still wouldn't be a bad idea to consult an attorney and be advised I am not giving you legal advice here, but providing the technical details only.

But, this should be simple enough to handle yourself, as this is a small claims matter.

Let me know. Trust me, you want to sign a Motion to Dismiss With Prejudice, after all parties sign a Settlement and Release Agreement.

I, as well as the others here, will be interesting in hearing the total outcome of this matter; i.e., the disposition of your gun collection, etc.

Carl

[Edward429451]

Wonderful news! So they're tryin to slip one in on me. Figures. You've given me a lot better grasp of the situation and I know exactly which way to go now. With prejudice.

Hey, maybe I can just quietly bang out a new form like he sent me on my computer, make it look substantially like his except it says 'with prejudice' instead of without and send that back to him. He might just glance at my sig and file it.:evil: A taste of their own medicine.;)

I had thought about the BBB, but the bar sounds like a good idear too. Every little bit helps when exchanging legal salvos.:rolleyes: Its ludicrous, expensive, and yet funny what they tried to do to me. I want to tie up loose ends before posting too many details but the gist of it is irate neighbor provides incredible probable cause to police, police think they're responding to the same house where a year earlier (Other tenants) stabs his wife so bring swat team, proud stupid American refuses to answer door to swat team b/c he knows they'll rape his possessions (gun collection), when police finally allowed to enter(4hrs) to find no crime committed but cant live with the fact that there's so much hardware there so trump a bunch of crap up and seize everything they can find. (Proud American was right.)

I got all my guns back 3 yrs later, said it was the first time they'd ever given a gun back. Made me go to the back door to pick em up! Brought em out in two shopping carts.;)

The lessons learned included dont park with your tire on a square of dirt that your neighbor claims, don't blindly follow your Attorny's advice, do answer the door to talk to police (hmmm:scrutiny: ), and absolutely do not plea bargain or waive any rights. (that was the plea bargain offered, forfeit all my property and they'd drop all charges!) I wound up with a misdemeanor refusal to leave the premisis.

And thats the short version.

I made mistakes, they made mistakes. We live and we learn.:banghead:

I got some reading to go do now. Thanks for the ideas!:D

[Carlos]

Sounds like you make out OK, battling against the ...

?

Contact me on Monday and I'll send that form. I'm a pretty busy guy, so I'll appreciate the reminder.

You know how to reach me.

EDITED TO ADD: Go for the first attorney

[Wiley]

As part of the dismissal settlement, don't forget to nick him for your expences in defending a bogus suit. Filing fees, copy expences, your time (at his rates), milage to and from court, etc. All legitimate costs. After his check clears, then and ONLY then, dismiss with prejudice.

Note: I'm not a lawyer and haven't stayed at a motel.

[Sergeant Bob]

proud stupid American refuses to answer door to swat team b/c he knows they'll rape his possessions (gun collection), when police finally allowed to enter(4hrs) to find no crime committed but cant live with the fact that there's so much hardware there so trump a bunch of crap up and seize everything they can find. (Proud American was right.)
I wonder if the Proud American has looked into SUEING THE CRAP OUT OF!!!!!!! said JBT's and stupid neighbor and anybody that looks like them. That's what I'd be talking to a lawyer about. I'd do anything I could possibly do to (legally) make their lives a living HE11!!

[TarpleyG]

I wound up with a misdemeanor refusal to leave the premisis.
Refusal to leave who's premise??? YOURS???

GT

[Sergeant Bob]

Standing Wolf Well, yeah, but we're not a police state.
OK, so it's quoted from another thread, but it sure applies here!

[Edward429451]

I learned so much at/through those links, Conflict of interest, duty to communicate, duty to perform. He's nuts to pursue this, He's going to owe me money. Thanks much.

Refusal to leave who's premise??? YOURS???

Yep.

[Edward429451]

Har har har. I called his attorney and asked him to make it with prejudice,, and he said absolutely not. So I told him that I was prepared, had a settlement agreement made up assigning me zero balance with prejudice, a complaint letter to the El Paso county Bar association, and am talking to my own attorney (not) about pursuing it to the limit against my old attorney, so go ahead and set a court date...

You see my attorney was on probation with a weapons disability, at the time he took my case. An attorney on probation is an attorney on thin ice, hence conflict of interest. No wonder he wasn't aggressive in defending me, he didn't want to step on anyones toes down there. As a professional attorney he had a duty to communicate to me the conflict of interest, and did not. I hired an attorney to get my guns back. I didn't need an attorney to strike a plea bargain and forfeit my guns for dropped charges. And for 3500 dollars, he had a duty to perform, He did not. He dragged his feet, and my wife talked it out with the DA in less than 10 mins.! He also induced me to transfer firearms to him for part of the bill, while under disability himself. Felony, I presume. I did not. I worked some of it off instead.

So I got a letter two days later after calling his attorney and asking for with predjudice, that had a preliminary hearing set. I figured ok, go to court and recover my money. Today a new letter with a motion to dismiss with prejudice...:p

Don't waive rights, plea bargain, or plead no contest. Always play hardball as they look for easy marks. I have always fared better in court since I started playing hardball.

The internet is a wonderful thing, those links helped put me on the right track and gave me the wording I needed to get them off my back. The settlement agreement when reworked, gave them much pause along with the counter claim, thanks Carlos! Thanks for all who responded, you guys are tops!!:D

[Bill Hook]

Don't get too happy or complacent just yet, as a lawyer still knows how to work the system better than you. It took me several continuances from the defendant's attorney until they finally agreed to settle when I showed up for court. I guess they were hoping to catch me unawares and lose my right to sue by moving dates around until I had to miss one, or just aggravate me.

[Edward429451]

Thanks Bill, I'm sittin here wonderin what could go wrong and it dawned on me. Their letter said this would cancel any court dates that may be set. He sent me two copies of the motion to dismiss, neither one is signed by him. If I signed one and sent it back, he could merely not file it and when I didn't show up I'd lose by default...

:scrutiny:

[Bill Hook]

Get the judge's phone number and call his secretary often to check if a particular piece of correspondence/brief has been filed with the clerk. You may ask how to file these yourself, so as to do an end-run on his delaying tactics.

You should have all the info and the case number, right? I got notices of trial dates from the state after filing that had the judge's info on it. Whenever the defendant's lawyer called, I followed up w/ the judge's office to check his story.

[buzz_knox]

He sent me two copies of the motion to dismiss, neither one is signed by him. If I signed one and sent it back, he could merely not file it and when I didn't show up I'd lose by default...

Send it back to him signed by certified mail, and with a letter stating that it must be filed within two days of receipt. Follow up with the clerk often.

[Edward429451]

I got my copy of the motion to dismiss with prejudice back today stamped by the court and signed and such. Took em long enough.

I am further convinced that playing hardball is the way to go. It was taking too long to get something back on it so I called him monday and told him that if I didn't get something back real quick that I I was going to go ahead and file the complaint with the bar, bbb, and AG. I guess that got em off their duff.:D

Thanks guys.:D

[Carlos]

I got my copy of the motion to dismiss with prejudice back today stamped by the court and signed and such. Took em long enough.

Glad to hear it and glad to help out. Attorney probably s*#t when he was presented with a professional settlement agreement from a little guy.

Hardball is the only way to play the game.

Happy Holidays Ed!!!

[Quartus]

Never with a criminal case, but I sure found out that hardball is the way to go.


Like you said, they look for easy marks.

[Edward429451]

http://www.handykult.de/plaudersmilies.de/wavey.gif