Business, Lawsuits and You

"Anonymous" in a comment after my post below on patents praises my advice, and gives a personal example of how he redesigned his product to get beyond patent protection, to a better product anyway.

Very good, but this being USA, it is still possible for the patent holder to sue you anyway.  Lawsuits for many reasons occur in USA, and often they are about just using the legal system to bully someone into submission.  Lawsuits are expensive and time consuming.  What if you could make anyone who sues you very sorry they did?  I'll tell you how.

First, anytime you are threatened with a lawsuit, you first response should be to de-escalate.  Say to the complainer "We have a business problem.  If you sue me, you make it a legal problem.  Why don't we first sit down, discuss the problem, you and I and see if we cannot work this out as a business problem.  If not, you can always sue me later, and convert it to a legal problem."  That either works, or not.

If not, then you get hit with a lawsuit.  Your first reaction is likely to be to hire an attorney yourself to defend you.  Don't do it.  Represent your self in court, act as what the courts call "pro se," that is representing yourself.  It sounds crazy and scary, but let me explain.

Most of a lawsuit takes place outside of the court.  Roughly there is the complaint which you must answer, preliminary issues dealt with, often before a judge but with all sorts of other routine matters for other cases as well as yours in a court session.  Then it is on to interrogatories and discovery, depositions and then trial.  A long expensive process if you have an attorney. Very few cases in life go to trial.

Most of a lawsuit is preparing legal documents in proper form and in a timely manner.  Whereas in USA you've always been able to represent yourself, until about 15 years ago, it was not a good idea, because you were likely to screw up the paperwork, and find yourself in trouble.  The change that came, at least in Washington state and is probably true in most states, is before it was all or nothing, a lawyer completely represented you, or not at all.  Now you can hire a lawyer for an hour and have them put your reply in proper form and tell you the proper time and place to file it.  So although you are representing your self, the person suing you invests $5000 to start the case, and your response costs you $150.  Most of a case is the paperwork, not court appearances.  But if you are obliged to make a court appearance, simply do so.  When your case is called up, you sit at a table like a lawyer.  You are being sued so the other side speaks first.  The rules pretty much are he cannot say anything that he has not already put in writing, so there should be no surprises.  Make notes especially of anything he says that is new to you.  Then object.  As long as you are never disrespectful of the judge, there is nothing you can do or say that will get you in trouble. The courts have ruled that judges are obliged to generally be patient and forgiving of people acting pro se, and to use reasonable care to understand and accommodate the pro se.  Even if you make a terrible mistake with an adverse ruling, you have ten days to appeal back to the same judge.  Get the lawyer helping you to coach you on this point. But usually, these preliminaries do not much matter. Worst case, you have to fork over another couple of hundred dollars, but to appear in court, the people suing you had to pay a few grand to their attorney.

Although these preliminary hearings can be terrifying, if you can simply show up in court, take your place, make a few objections, you will have ruined the case for the person suing you.  You just made clear you are not afraid to go into court and defend yourself.  Their best weapon against you, fear,  is now useless.

If you can do this, then you begin to make them sorry they sued you.  After the preliminaries, come the interrogatories.  Here you get 150 pages of questions you are obliged to answer within say 30 days.  If you had an attorney representing you, these would cost thousands to answer.  Don't worry.  First thing you do is make a photocopy of the whole thing.  Then write in very short answers, handwritten.  If you do not know the answer, say so.  If you think the question has nothing to do with the case, say so, and don't otherwise answer.  Use the old rhetorical advice when answering relevant questions: seldom affirm, never deny, always differentiate.  If a questions asks "do you still beat your wife" of course do not say yes, but don't say no...say "you call that a beating?" or "define 'beating'" Give them nothing.

These cost the person suing you thousands to prepare.  And it just cost you nothing to respond.  If you are obliged to respond within 30 days, on day 28, send it in.  Drag out the calendar. Usually you send a copy of your answers to the clerk of the court as well as the attorneys suing you.

Now this is where it begins to get fun.  Remember that photocopy of the interrogatories you made before you wrote in your answers?  It is addressed to you on top of the front page, and below your name is the name of the person suing you and his law firm.  There is plenty of empty space around this area on the sheet of paper.  Where the interrogatories are addressed to you, cross out your name and write in the name of the person suing you.  Where it says the name of the law firm who sent you the interrogatories, you write in your name and "pro se.  Send back a copy plus one to the clerk of the court.  The person suing you now has 30 days to answer all those 150 pages of questions.  You might even come up with a few questions of your own, and add them on, just continuing the format on extra sheets you produce on your word processor.  This cost you exactly nothing, but the law firm will be obliged to answer all of the question with full legal care, so it will cost the person suing you thousands.  The case has gone almost no where, you've spent maybe $500 getting guidance from an attorney, and the person suing you has forked over at least $10,000.

The next step is depositions, an extremely expensive proposition.  If you clearly are not intimidated, and are quite capable of guerilla action in your own defense, and this case has already cost so much for so little, the person suing you will wonder what will happen in the next phase?  It is very likely the lawsuit gets dropped by this point.

If not, and you go on to depositions, then watch the videos of Bill Clinton being deposed in the Monica Lewinsky case. Learn from the master.  Give them nothing.  And then, next, it is your turn.  You can take all the time in the world, videotaping questions, with the person suing you surrounded by lawyers, all charging top fees.  Ask the same questions back, and throw in any you have.  Nail them again in time and money.

If after this they still want to go to trial (is it possible you'd have any case worth so much money?  is it such a large case, and so clear? Wouldn't any victory by pyrrhic anyway since such a large case would bankrupt you if they won?)

But let's say it goes to trial.  Then defend yourself in court.  Or not.  At any point you can call in your own attorneys and let them take over.  If you lose bad on some point at some point, you always have a week or so to get in an appeal.  But by going pro se, you upset the usual process of getting beaten into a settlement.  By going pro se, instead of a settlement, you are far more likely to see the case dropped.  going pro se means your defense costs almost nothing, but suing you costs exponentially more.  Instead of letting people use the legal system to bully you, use their force back against themselves.  After a while, when you see the legal process is not such a big mysterious scary thing, you can even find it fun to defend yourself.  Better to never get in a case to begin with, but this is USA, and you may have no choice.

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